Monday, February 9, 2015

From the first day, it's clear that law professor Jon Hanson's new Systemic Justice class at Harvard Law School is going to be different from most classes at the school. Hanson, lanky, bespectacled, and affable, cracks jokes as he paces the room. He refers to the class of 50-odd students as a community; he even asks students to brainstorm a name for the group. But behind the informality is a serious purpose: Hanson is out to change the way law is taught.

Jon Hanson and Jacob Lipton

"None of us really knows what ‘systemic justice' is -- yet you're all here," he points out. The new elective class, which is being taught for the first time in this spring term, will ask students to examine common causes of injustice in history and ways to use law and activism to even the field.

Traditionally, students come to law school to master existing laws and how to apply them. But surveys given to the students in this class beforehand show that most are worried about big unsolved social problems -- income inequality, climate change, racial bias in policing -- and believe that law is part of the problem. The goal of Hanson's class is to introduce a new approach.

The class is part of a new Systemic Justice Project at Harvard, led by Hanson and recent law school graduate Jacob Lipton. They're also leading a course called the Justice Lab, a kind of think tank that will ask students to analyze systemic problems in society and propose legal solutions. Both classes go beyond legal doctrine to show how history, psychology, and economics explain the causes of injustice. A conference in April will bring students and experts together to discuss their findings.

Harvard's project is an unusual one, but it arises out of a growing recognition that law students need to be trained to be problem-solvers and policy makers. As Hanson tells his students that first day, "If you're thinking about systemic justice, you need to be thinking about legal education." He believes that this education should be less about learning the status quo and more about how the next generation of lawyers can change it.

There's widespread acknowledgment that justice is often meted out unfairly; decades of scholarship have shown how social biases based on race, gender, corporate interests, or ideology find their way into written laws. Nevertheless, Hanson says, law school classes don't always give students the tools to counteract injustices. "My students have expressed increasing amounts of frustration with the fact that many of our biggest problems are not being addressed by the legal system," he says. Lipton was one of those students. After graduating in 2014, he turned down a fellowship in Washington, D.C., to stay at Harvard and help Hanson see the new project through.

One of their targets is the case method of legal education, which has been the dominant form of teaching law in America since it was introduced at Harvard Law School by Christopher Columbus Langdell after he became its dean in 1870. Rather than lecturing his students, Langdell asked them to examine judicial cases of the past. Then, through a process of Socratic questioning, he would challenge students to explain their knowledge and interpretation of a case, allowing them to glean the deeper principles of the law, much like a scientist would examine evidence.

Though the case method has evolved since the 19th century, the primary text of most classes is still the casebook -- a set of legal decisions chosen for their ability to illustrate legal principles. Professors who embrace it say this approach forces students -- particularly first-year students with little legal training -- to think like lawyers. "Within a few weeks, I have reprogrammed their brains," says Bruce Mann, a law professor at Harvard who's known for his rapid-fire questions in class. "That doesn't mean that it is backward-looking. I'm really teaching them how to think." Mann, like many professors these days, tries to put cases in a larger historical and social context.

But Hanson and Lipton believe that the case method, while helpful in the hands of skilled teachers, puts too much emphasis on what the law already is, rather than what it should be. It tends to assume that decisions of the past are fair and appropriate. Instead, says Lipton, "we think that legal education should start with what the problems are in the world."

They also take issue with the way that law gets divided into categories -- tax law, criminal law, property law, torts, contracts -- each with different professors and different casebooks. Douglas Kysar, a law professor at Yale Law School and former student of Hanson's who has embraced his interdisciplinary approach to the law, says that these divisions can hinder tackling issues that existing laws don't address, and permits problems that run across disciplines to go unaddressed. "In each one of those fields, we often try to present the cases and materials as if they're an efficient and fair whole," he says. When something arises to challenge that picture, professors can pass the buck. For instance, in environmental law, one of Kysar's specialties, it's not always clear where the responsibility to fix a problem like pollution lies. "Everyone's pointing their fingers at other systems that are supposed to address a harm," he says. "There's no place where you're looking at the systems in a cross section."

Hanson and Lipton also argue that the law focuses too much on the actions and disputes of individuals -- and not even on an accurate vision of how individuals behave. "In many cases, the focus on the individual obscures what the actual problem is or what the solutions are," Lipton says. Hanson, meanwhile, has long argued that the vision of the individual that exists in law isn't well backed up by research. He directs the Project on Law and Mind Sciences at Harvard, which brings findings from social psychology and social cognition to bear on the law. The law generally treats people as rational actors making decisions based on their own knowledge and beliefs. In fact, Hanson says, research has shown that people are easily swayed by their circumstances. Through their academic writing and on a blog called The Situationist, Hanson and a growing group of like-minded scholars have argued that solving systemic problems means focusing more on forces that act on us, rather than assigning blame and punishment to individual actors.

A systemic approach to racial bias in policing, for instance, might look at psychological research on unconscious racial bias, police training techniques, and law enforcement policies in order to create a more just system, rather than on the actions of a specific officer. For the problem of rising student debt, another complex issue that students in the Justice Lab think tank are likely to tackle, it might look at federal loan systems that allow for-profit colleges to put students in debt without providing enough value in return. Another example is obesity and the food system; a systemic approach would look at ways that advertising, agricultural subsidies, supermarket zoning, and food service practices create an unhealthy system for consumers. "We want to examine the role that large commercial interests play in shaping laws," Hanson says. Solutions might involve class actions, new regulations, or institutional changes.

While systemic solutions aren't always politically popular -- think of when Michael Bloomberg tried to ban the sale of giant sodas in New York City to improve public health -- Hanson thinks that the idea of systemic justice resonates now in a way that it hasn't always in the past. "I think that is a reflection of the change in the mood in the country and in this generation of law students," he says.

Harvard's systemic justice initiative arises at a time when legal education is in an admitted state of crisis. Since 2010, law school enrollment in the United States has dropped to its lowest levels since 1987, according to the American Bar Association; fewer legal firms are hiring; and some law schools are in danger of closing altogether.

That's prompting many schools to find new ways of teaching. "Law schools are entering this era of trial and error," says William Henderson, a law professor at Indiana University who writes about legal education. Many are eschewing academic theory in favor of giving students practical skills and opportunities for hands-on learning. "Everyone in legal education sees that change is happening," Henderson says. Still, teaching via casebooks is a time-honored, widespread tradition, and there's a lot of inertia to overcome.

The Systemic Justice Project, though unique in some ways, is part of a larger effort introduce a policy focus into law school -- Stanford Law School, for instance, recently launched a Law and Policy Lab that asks students to find policy solutions to real-world problems. "Traditionally, law school education has been doctrinal," says Sergio Campos, a law professor at the University of Miami and visiting professor at Harvard. "You teach students what the law is and how to apply it." To be fair, that's exactly what many law students will be called on to do after graduation, working at law firms serving clients with specific cases and problems. They may contribute to significant case law in their field, but they won't be reshaping systems. But others will become judges, politicians, policy makers, organizational leaders, and presidents. Without a broader systems or policy perspective, those lawyers could be in trouble: "When you get to a position where you can change the law, you don't have a background on policy and what it should be," Campos says.

The debate about how much lawyers should think about the wider social implications of their work stretches back to a classic 1897 essay in the Harvard Law Review called "The Path of the Law." In it, the great Boston jurist and eventual Supreme Court Justice Oliver Wendell Holmes Jr., decried the "blackletter man" who learned the law as a closed system of knowledge based on past precedents, without reconsidering whether laws are working for the public good.

In that essay, says Harvard law professor David Rosenberg, Holmes was calling on lawyers and judges to engage with other areas of knowledge and to act as policy makers and social engineers. "Law is a bunch of social problems," he says. But while many agree with that idea in principle, he believes law schools often leave students unprepared to think broadly. "Over and over again in my many decades at Harvard, students have told me that my advice contradicts their instruction in other courses that making social policy arguments is a confession of weakness in your legal position, and should be done, if ever, only as a last resort," he says. "We're de-training them."

Rena Karefa-Johnson, a second-year student who's signed up for both the Systemic Justice class and the Justice Lab, admits that some students simply want to learn existing law and don't appreciate Hanson's approach. But it's been popular with students like her who are already active in fighting for social causes. "The law is inherently political," she says. "He does not allow his students to learn the law outside of its context."

In a dramatic show of defiance toward the federal judiciary, Chief Justice Roy S. Moore of the Alabama Supreme Court on Sunday night ordered the state's probate judges not to issue marriage licenses to gay couples on Monday, the day same-sex marriages were expected to begin here.

"Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent" with the Alabama Constitution or state law, the chief justice wrote in his order.

The order, coming just hours before the January decisions of United States District Court Judge Callie V. S. Granade were scheduled to take effect, was almost certainly going to thrust this state into legal turmoil. It was not immediately clear how the state's 68 probate judges, who, like Chief Justice Moore, are popularly elected, would respond to the order.

Since Judge Granade moved last month to declare Alabama's prohibitions against same-sex marriage unconstitutional, the chief justice has insisted that the probate judges were not required to abide by her decisions. But, in an interview on Wednesday, he said he thought he could do little more than guide the probate judges on how to respond.

"I think I've done what I can do: advise the state court probate judges that they're not bound by any ruling of the Federal District Court," he said.

But by Sunday night, the chief justice, faced with the prospect of many judges allowing same-sex marriages to move forward, acted, in part, "to ensure the orderly administration of justice within the State of Alabama."

Reached by telephone late Sunday night, Ben Cooper, chairman of the board of the gay rights group Equality Alabama, said that same-sex couples expected to be issued marriage licenses Monday morning.

"We are continuing to move forward tomorrow," Mr. Cooper said. "If we walk in and licenses are refused, if they do not comply with the federal order, then these probate judges could be personally liable," said Mr. Cooper, who added that he expected legal actions to be filed against the individual probate judges if they do not issue the licenses.

Some judges across the state had already signaled they would do nothing to aid gay couples and, in some instances, any couples. "Marriage licenses and ceremonies are no longer available at the Pike County Probate Office," the office said.

And Washington County Probate Judge Nick Williams released a "declaration in support of marriage" in which he said he would "only issue marriage licenses and solemnize ceremonies consistent with Alabama law and the U.S. Constitution; namely, between one man and one woman only, so help me God."

Several judges elsewhere announced variations of those plans after a push by Chief Justice Moore, who rose to national prominence in the early 2000s when he defied a federal judge's order to remove a Ten Commandments monument from a Montgomery building and was subsequently ousted from his post leading the high court. He staged a political comeback, became chief justice again in 2013, and has in recent weeks said that Alabama's probate judges are not bound by a federal trial court's decisions. His argument has deep resonance in a place where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.

Although much has changed from Wallace's era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that Judge Granade, an appointee of President George W. Bush who joined the federal bench in 2002, had instigated a grave breach of law.

The result had been a legal and cultural debate rife with overtones of history, closely held religious beliefs and a chronically bubbling mistrust of the federal government that was expected to play out at Alabama's courthouses Monday.

"I didn't start this," Chief Justice Moore said last week of the controversy. "This was a federal court case pushed on our state."

Judge Granade has signaled that she expects probate judges to carry out her decisions, and judges, before the chief justice's order, had often said they would.

"With all due respect to Chief Justice Moore, he's on the Alabama Supreme Court, and he's not a federal judge," said Alan L. King, a probate judge in Jefferson County, said last week.

The chief justice's misgivings speak to widespread concerns here about federal overreach and same-sex marriage in Alabama, where about 81 percent of voters in 2006 supported a constitutional amendment banning gay nuptials. Few here doubt the force of his belief that Judge Granade's orders hold only "persuasive authority," and not binding power, on Alabama judges.

"My guess is that is actually the way Roy Moore sincerely understands the federal-state relationship," said Joseph Smith, a judicial politics expert at the University of Alabama. "He's also an elected politician, and he knows who his constituency is."

So he has for now turned his words against Judge Granade.

"She can't order them to recognize the unconstitutionality of the Sanctity of Marriage Amendment by her views," the chief justice said in a telephone interview during which he quoted Alabama statutes verbatim and resisted comparisons to Wallace.

Despite Chief Justice Moore's protests, some analysts see parallels between his arguments now and those Wallace advanced in his own time.

"It's a very similar strain of ideology: the state's rights, resisting the national tide, resisting liberal movements in policy," Dr. Smith said.

Some legal scholars say that the chief justice may be correct in his interpretation of the immediate scope of the federal court's rulings and how they apply to the probate judges. But his eagerness in pronouncing his views unnerved some in Alabama who feared that it might stir local judges to resist Judge Granade.

"I don't want to see judges make the same mistakes that I think were made in this state 50 years ago, where you have state officials not abiding by federal orders," said Judge Steven L. Reed of Montgomery County, who added, "The legacy always hangs over us until we show that we're beyond it."

But there had been only limited talk of plans for sweeping defiance by probate judges, including those who say that same-sex marriages conflict with their religious views. In Geneva County, Judge Fred Hamic said Wednesday he would issue licenses to gay couples but that they would have to go somewhere else to wed. "I believe I would be partaking in a sin, and I sin every day, don't get me wrong," he said. "This is one sin I do not have to participate in, not that you have to participate in any sin."

For many here, it is unsurprising that Chief Justice Moore emerged as a strident voice in a social debate after the dispute about the Ten Commandments display, known as "Roy's Rock," forced him from power.

"Unfortunately, sometimes it makes for very good politics here to be seen as opposing federal intervention, whether it's from a court or a federal agency," said David G. Kennedy, who represents two women involved in a case that prompted Judge Granade's decision. "The situation here is that this is not federal intervention. It's not federal intervention at all. What it is, is a federal court declaring what same-sex couples' rights are under the federal Constitution."